STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

KENNETH C HILL, Employee

THE MAASAI INSTITUTE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07604049MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A petition for review was filed by the employee.

Wisconsin Stat. § 108.09 (6)(a) provides, in relevant part, as follows:

"The department or any party may petition the commission for review of an appeal tribunal decision, pursuant to commission rules, if such petition is received by the department or commission or postmarked within 21 days after the appeal tribunal decision was mailed to the party's last-known address. The commission shall dismiss any petition if not timely filed unless the petitioner shows probable good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner . . ."

Wisconsin Admin. Code § LIRC 1.02 provides, in relevant part, as follows:

All petitions for commission review shall be filed within 21 days from the date of mailing of the findings and decision or order . . .

Wisconsin Admin. Code § LIRC 1.025 provides, in relevant part, as follows:

(1) Petitions for review may be filed by mail or personal delivery. A petition for review filed by mail or personal delivery is deemed filed only when it is actually received by the commission or by the division of the department to which the petition is mailed, except that petitions for review in unemployment insurance cases under s. 108.09 or 108.10, Stats. which are filed by mail or personal delivery are deemed filed when received or postmarked as provided for in s. LIRC 2.015....

The administrative law judge's decision having been dated and mailed on July 12, 2007, the last day on which a timely petition for review could have been filed was August 2, 2007. The petition for review was filed on September 14, 2007.

It was within the employee's control, before abandoning his appeal, to ascertain the possible impact of the adverse determination on his eligibility for future benefits.

The commission therefore finds that the petition for commission review was not timely and that the petitioner has not shown probable good cause that the reason for having failed to file the petition timely was beyond the petitioner's control, within the meaning of Wis. Stat. § 108.09 (6)(a).

DECISION

The petition for review is dismissed.

Dated and mailed November 19, 2007
hillken . upr : 115 : 1  PC 731

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


The employee was a teacher who actually performed services only during the nine-month academic year but whose payments for these services, according to his contract with the employer, were spread over a 12-month period, i.e., September 1 through August 31 of the following year.

According to the employee, he was discharged by the employee for cause effective June 1, 2007, two weeks before the end of the academic year, and the employer initially paid him only through June 1. As a result, he filed a claim for benefits on June 4.

A department determination finding that the employee had been discharged for misconduct and denying benefits as a result was dated and mailed on June 21, 2007. This determination stated that 'base period wages from work for the employer prior to the discharge cannot be used to compute the maximum benefit amount for this or any later claim." (emphasis added)

The employee filed a timely appeal of this determination on June 25.

Some time prior to July 3, the employee also filed a wage claim for the payments he contended he was due under his contract with the employer for the period between June 1 and September 1, 2007. By letter dated July 3, the employer notified a department wage claim investigator that it had not withheld any wage payments to which the employee was entitled under his 2006-2007 contract, and would continue such payments, as the contract provided, until September 1, 2007. According to the employee, he received back pay for the period beginning on June 1, 2007, and continuing through August 31, 2007.

Notice that hearing on the misconduct issue would be conducted on July 12, 2007, was mailed to the parties on July 6, 2007.

The employee contends that, because he was aware at that time that he would be paid for the remainder of the contract period, and, presumably, that he would not qualify for benefits for that period as a result, and based on advice he received from the employer, he decided not to appear for the hearing or to appeal the July 12 appeal tribunal decision (ATD) dismissing his appeal due to his nonappearance.

Once the contract payments stopped, the employee, on September 4, 2007, initiated a new claim for benefits. He apparently learned at that time that the June 21 determination affected his eligibility for benefits, and, as a result, filed a petition for commission review of the July 12 ATD on September 14, six weeks after the August 2 appeal deadline.

The issue is whether the explanation offered by the employee for his untimely petition, if proved, would constitute a reason beyond his control.

Although the fact situation is a somewhat complicated one, it was certainly within the employee's control, before abandoning his appeal, to ascertain the possible impact of the adverse determination on his future eligibility for benefits by consulting with the department or some other appropriate resource. The employee was alerted to such a possible impact by the language in the determination to the effect that wages earned from the employer could not be used to compute the maximum benefit amount for any later claim. It was not reasonable for him to rely exclusively upon representations made to him by the employer, whose interests may have been adverse to his, in this regard.

As a result, the employee's untimely petition for commission review is dismissed.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2007/11/28